Is a municipal ordinance that makes it unlawful to interrupt a police officer in the performance of his or her duties unconstitutionally overbroad under the First Amendment?

II. CASE SUMMARY:

A. Background:

"Appellee Raymond Wayne Hill is a lifelong resident of Houston, Texas. At the time this lawsuit began, he worked as a paralegal and as executive director of the Houston Human Rights League. A member of the board of the Gay Political Caucus, which he helped found in 1975, Hill was also affiliated with a Houston radio station, and had carried city and county press passes since 1975. He lived in Montrose, a 'diverse and eclectic neighborhood' that is the center of gay political and social life in Houston.

The incident that sparked this lawsuit occurred in the Montrose area on February 14, 1982. Hill observed a friend, Charles Hill, intentionally stopping traffic on a busy street, evidently to enable a vehicle to enter traffic. Two Houston police officers, one of whom was named Kelley, approached Charles and began speaking with him. According to the District Court, 'shortly thereafter' Hill began shouting at the officers 'in an admitted attempt to divert Kelley's attention from Charles Hill.' Hill first shouted: 'Why don't you pick on somebody your own size?' After Officer Kelley responded: '[A]re you interrupting me in my official capacity as a Houston police officer?' Hill then shouted: 'Yes, why don't you pick on somebody my size?' Hill was arrested under Houston Code of Ordinances for 'wilfully or intentionally interrupt[ing] a city policeman . . . by verbal challenge during an investigation.' Charles Hill was not arrested. Hill was then acquitted after a nonjury trial in Municipal Court....

Following his acquittal in the Charles Hill incident, Hill brought the suit in the Federal District Court for the Southern District of Texas, seeking (1) a declaratory judgment that was unconstitutional both on its face and as it had been applied to him, (2) a permanent injunction against any attempt to enforce the ordinance, (3) an order expunging the records of his arrests under the ordinance, and (4) damages and attorney's fees under 42 U.S.C. 1983 and 1988.

At trial, Hill introduced records provided by the city regarding both the frequency with which arrests had been made for violation of the ordinance and the type of conduct with which those arrested had been charged. He also introduced evidence and testimony concerning the arrests of several reporters under the ordinance. Finally, Hill introduced evidence regarding his own experience with the ordinance, under which he has been arrested four times since 1975, but never convicted.

The District Court held that Hill's evidence did not demonstrate that the ordinance had been unconstitutionally applied. The court also rejected Hill's contention that the ordinance was unconstitutionally vague or overbroad on its face....

A panel of the Court of Appeals reversed. The city's suggestion for rehearing en banc was granted, and the Court of Appeals, by a vote of 8-7, upheld the judgment of the panel."

On appeal the US Supreme Court affirmed the judgment of the US Fifth Circuit Court of Appeals.

B. Counsel of Record:

ACLU Side
(Respondent/Appellee)

Opposing Side
(Petitioner/Appellant)

Unavailable

Unavailable

C. The Arguments:

ACLU Side
(Respondent/Appellee)

Opposing Side
(Petitioner/Appellant)

Unavailable

Unavailable

III. AMICI CURIAE:

ACLU Side
(Respondent/Appellee)

Opposing Side
(Petitioner/Appellant)

Brief of amici curiae urging affirmance by Alvin Bronstein, David Goldstein, Burt Neuborne, James Harrington, and Bruce Griffiths filed a brief for the American Civil Liberties Union et al.

Charles Alan Wright argued the cause for appellee. With him on the brief were Michael A. Maness and Gerald M. Birnberg.

Robert J. Collins argued the cause for appellant. With him on the briefs was Jerry Edwin Smith.

IV. THE SUPREME COURT'S DECISION:

"The elements of First Amendment overbreadth analysis are familiar. Only a statute that is substantially overbroad may be invalidated on its face....

The city's principal argument is that the ordinance does not inhibit the exposition of ideas, and that it bans 'core criminal conduct' not protected by the First Amendment. In its view, the application of the ordinance to Hill illustrates that the police employ it only to prohibit such conduct, and not 'as a subterfuge to control or dissuade free expression.' Since the ordinance is content-neutral, and since there is no evidence that the city has applied the ordinance to chill particular speakers or ideas, the city concludes that the ordinance is not substantially overbroad.

We disagree with the city's characterization for several reasons. First, the enforceable portion of the ordinance deals not with core criminal conduct, but with speech....

Second, contrary to the city's contention, the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. 'Speech is often provocative and challenging... [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.'

...Houston's ordinance criminalizes a substantial amount of constitutionally protected speech, and accords the police unconstitutional discretion in enforcement. The ordinance's plain language is admittedly violated scores of times daily yet only some individuals - those chosen by the police in their unguided discretion - are arrested. Far from providing the 'breathing space' that 'First Amendment freedoms need... to survive,' the ordinance is susceptible of regular application to protected expression. We conclude that the ordinance is substantially overbroad, and that the Court of Appeals did not err in holding it facially invalid.

...Today's decision reflects the constitutional requirement that, in the face of verbal challenges to police action, officers and municipalities must respond with restraint. We are mindful that the preservation of liberty depends in part upon the maintenance of social order. But the First Amendment recognizes, wisely we think, that a certain amount of expressive disorder not only is inevitable in a society committed to individual freedom, but must itself be protected if that freedom would survive. We therefore affirm the judgment of the Court of Appeals."

The US Supreme Court affirmed the judgment of the US Fifth Circuit Court of Appeals.

Justice Vote: Pro vs. Con

Brennan, W. Pro (Wrote majority opinion)

White, B. Pro (Joined majority opinion)

Marshall, T. Pro (Joined majority opinion)

Blackmun, H. Pro (Wrote concurring opinion)

Stevens, J.P. Pro (Joined majority opinion)

Scalia, A. Pro (Wrote concurring opinion)

Powell, L. Pro (Wrote concurring opinion in part)

Rehnquist, W. Con (Wrote dissenting opinion)

O'Connor, S.D. Con (Joined dissenting opinion)

V. A WIN OR LOSS FOR THE ACLU?

The ACLU, as amicus curiae, urged affirmance of the U.S. Fifth Circuit Court of Appeals judgment; the Supreme Court affirmed in a 7-2 vote, giving the ACLU an apparent win.